COMMISSIONER OF CENTRAL EXCISE Vs. TTK TEXTILES LTD.

JUDGEMENT

(1.) IN this application of the Revenue, it is submitted that there is an apparent mistake in our Final Order No. 205/2005, dated 10 -2 -2005 [2005 (184) E.L.T. 282 (T)] passed in the captioned appeal. After examining the records and hearing both sides, we find that, in the final order, we were following, with approval, the view taken by the lower appellate authority in Order -in -Original No. 148/2003 wherein the goods in question (paper tubes) had been classified under Heading No. 48.22 of the CETA Schedule. We noted the submission made on behalf of the assessee that the said Order -in -Appeal No. 148/2003 had not been appealed against by the Department and, further, that the said submission was not contested. Accordingly, we found that the Order -in -Appeal No. 148/2003 had become final. Hence the aforesaid view taken by us in the final order under consideration.

(2.) IN the present application, it is stated by the Department that, as a matter of fact, they had filed an appeal with the Tribunal against Order -in -Appeal No. 148/2003. It is claimed that, on account of this fact, there is a "mistake apparent from the records" and the same requires to be rectified.

(3.) IN this application, the Department has not found fault with our observation contained in the last sentence of Para 2 of the final order. We observed that the Id. Consultant's submission that Order -in -Appeal No. 148/2003 had not been appealed against was not disputed. Our conclusion in the final order is based on this fact. That Order -in -Appeal No. 148/2003 had actually been appealed against is not a fact already borne on record. It is a fact now placed before us by the Revenue. For invoking Section 35C(2) of the Central Excise Act, there should have been a mistake apparent from "the record". As the fact now placed before us is not one which formed part of "the record" when the final order was passed, we do not find any merit in the present application.